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High Court gives FCC ‘green light’ to sanction television indecency
The Supreme Court’s decision to duck a call on the federal government’s power to police the airwaves for “indecent” content effectively hands that power to the FCC, according to lawmakers and conservatives reacting to the ruling.
They said the Federal Communications Commission (FCC) will now face pressure from Congress and advocacy groups to go through that backlog of complaints and start cracking down on stations.
“The public airways are just that—public,” he said. “The networks using them have a moral duty to the American public to responsibly provide content that is acceptable for all viewers.”
Dan Isett, director of public policy for the Parents Television Council, said in an interview that the FCC should start fining stations for indecent content as soon as possible.
“The court did not strip the FCC of the authority to do anything,” Isett said, adding that the next step is for the commission to review the backlog of complaints.
The Parents Television Council is one of the leading critics of vulgar TV content, and its members have filed many of the complaints now pending with the commission.
Lawmakers offered a similar reaction after Thursday’s ruling by the High Court.
Sen. Jay Rockefeller (D-W.Va.), chairman of the Senate Commerce Committee, called the ruling “a victory for those of us who believe that we must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming.”
And in a joint statement, Rep. Fred Upton (R-Mich.), chairman of the House Energy and Commerce Committee, and Rep. Greg Walden (R-Ore.), chairman of the panel's subcommittee on Communications and Technology, said protecting family values is a priority and the FCC should enforce the rules on the books.
Since the beginning of the Obama administration, the FCC has been waiting for the courts to resolve the controversy before issuing any fines.
Federal law instructs the FCC to punish stations for broadcasting indecent material such as curse words, but the stations argue the policy violates their First Amendment right to free speech.
Instead of ruling on the constitutionality of the issue, the Supreme Court threw out the fines of the television stations in the case on procedural grounds. The legality of the ban on indecent content remains unclear. But the decision removes the FCC's rationale for not acting against stations that broadcast offensive content.
While the FCC waited for the courts, about 1.5 million indecency complaints accumulated.
“There's bipartisan agreement on this,” said Andrew Schwartzman, a telecommunications lawyer who represented artists opposed to the indecency fines, in an interview. “Everyone on the Hill wants the FCC to take a hard line.”
But it is unclear how eager FCC Chairman Julius Genachowski, a Democrat, will be to crusade for tough decency standards.
Historically, Republican chairmen have been tougher on indecent content than Democratic chairmen.
In a statement in response to the ruling, Genachowski said only that the FCC will carry out Congress's directive to protect young TV viewers "consistent with vital First Amendment principles."
Because the Supreme Court did not take a position on the constitutionality of the ban on indecent content, any enforcement efforts could lead to more litigation for the FCC.
In the court's opinion, Justice Anthony Kennedy noted that the FCC is “free to modify its current indecency policy.”
The policy at issue was an especially tough standard adopted in 2004 under the George W. Bush administration. The policy bans even unscripted curse words and momentary nudity.
The FCC could adopt a new, less stringent policy in hopes of boosting its chances of surviving future court challenges. But any policy that bars offensive content risks First Amendment lawsuits.
Genachowski could drag his feet on the issue in hopes of leaving the thorny issue to his successor—who, if Mitt Romney wins the presidential election, could take office early next year.
“There will be at least a couple more years of uncertainty,” Schwartzman predicted.
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